Appellate Division, Second Department
Jul 18, 2018
2018 NY Slip Op 05268
Provider prevailed
The provider's reasonable excuse and potentially meritorious defense warranted vacating its default in the insurer's de novo action. The Appellate Division, Second Department, reversed the order and granted vacatur under CPLR 5015 (a) (1) and an extension to answer under CPLR 2004 and 3012 (d). The insurer brought the action under Insurance Law § 5106 (c) after an arbitrator awarded benefits for surgery and related care and a master arbitrator affirmed. The provider's vacatur motion was timely. Besides finding the required excuse and defense, the court noted that the insurer had not asserted prejudice below, the record did not reflect willfulness, and public policy favored resolution on the merits.
Appellate Term, Second Department
Jul 20, 2018
2018 NY Slip Op 51150(U)
Split result
The insurer failed to prove timely mailing of its denials, and the provider failed to establish its prima facie case for summary judgment. The Appellate Term, Second Department, reversed the provider's judgment and vacated the portions of the underlying order granting the provider summary judgment and sanctions-related costs. The insurer's motion to dismiss based on the assignor's IME nonappearance remained denied because its moving papers did not establish timely denial mailing. Citing Insurance Law § 5102 (a), the court found that the provider failed to show either untimely denials or timely denials that were conclusory, vague or legally meritless. The provider also failed to demonstrate sanctionable conduct by the insurer or its counsel under 22 NYCRR 130-1.1 (c), requiring denial of its request for costs.
Appellate Term, Second Department
Jul 13, 2018
2018 NY Slip Op 51128(U)
Provider prevailed
A default judgment against an assignor does not preclude a provider's action when the order does not determine the provider's rights. The insurer commenced a declaratory judgment action after the provider sued for assigned no-fault benefits. The provider answered, but its assignor defaulted, and Supreme Court granted the insurer's unopposed motion under CPLR 3215 against the assignor. That order did not declare the insurer's rights against the provider and therefore was not a conclusive final determination of the provider's rights. The Appellate Term, Second Department, granted leave to appeal, reversed the Civil Court's order, and denied the insurer's unnoticed dismissal motion, reaching no other issue.
Appellate Term, Second Department
Jul 13, 2018
2018 NY Slip Op 51132(U)
Insurer prevailed
The provider failed to show that it took proceedings to enter judgment within one year of the insurer's calendar default. The Appellate Term, Second Department, affirmed the order vacating the provider's default judgment and dismissing the complaint under CPLR 3215 (c). The judgment had been entered after the insurer failed to appear at a calendar call. The provider did not rebut the insurer's motion by demonstrating timely proceedings for entry of judgment. CPLR 3215 (c) requires dismissal as abandoned when no such proceedings are taken within one year, unless sufficient cause is shown. The Civil Court did not abuse its discretion in granting the insurer's motion.
Appellate Term, Second Department
Jul 13, 2018
2018 NY Slip Op 51124(U)
Provider prevailed
The provider should have been allowed to offer witness testimony to satisfy the condition imposed for a trial adjournment. The Civil Court dismissed the complaint after finding that the provider had not supplied proof that its witness was attending a funeral on the scheduled trial date. The Appellate Term, Second Department, dismissed the appeal except as to that contested default determination, which was reviewable notwithstanding CPLR 5511. Although conditioning the adjournment on funeral proof was discretionary, refusing the witness an opportunity to testify was an improvident exercise of discretion. The judgment, insofar as reviewed, was reversed, the default determination vacated, and the matter remitted for a hearing and a new determination of compliance.
Appellate Term, Second Department
Jul 13, 2018
2018 NY Slip Op 51125(U)
Insurer prevailed
The insurer's motion to vacate a default judgment entered upon its failure to proceed at trial was granted on appeal. The Appellate Term, Second Department, reversed, finding a reasonable excuse and meritorious defense under CPLR 5015 (a) (1). The submissions included the assignor's admission of a staged accident and a default declaratory judgment finding no duty to pay benefits.
Appellate Term, Second Department
Jul 6, 2018
2018 NY Slip Op 51083(U)
Split result
A fee schedule defense is not precluded by an untimely denial for services governed by 11 NYCRR 65-3.8 (g). The chiropractor acupuncture schedule governed reimbursement under Insurance Law § 5108 (a) and (b). The Appellate Term, Second Department, reversed the provider's judgment and denied its summary judgment motion because it failed to establish untimely or legally deficient denials. The self-insurer proved full payment for CPT codes 97811, 97813 and 97814, warranting dismissal of those portions of the first through sixth and eighth causes of action. Dismissal remained denied for code 99262 because excess charges were not established, and for the seventh cause of action because nothing had been paid on its bill.
Appellate Term, Second Department
Jul 6, 2018
2018 NY Slip Op 51081(U)
Insurer prevailed
A provider that fails to timely object to discovery must produce the information unless it is privileged or palpably improper. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and compelling specified business records and a deposition. The provider had not timely challenged the demands under CPLR 3122 (a) or shown privilege or palpable impropriety. The insurer's licensing-eligibility defense under 11 NYCRR 65-3.16 (a) (12) and Mallela was not precludable, and a deposition was available under CPLR 3101 (a). Summary judgment was denied because the provider failed to establish untimely denials or timely denials that were conclusory, vague or legally meritless.
Appellate Term, Second Department
Jul 6, 2018
2018 NY Slip Op 51082(U)
Split result
The insurer was entitled to a provider deposition on medical necessity, but a triable factual issue precluded summary judgment. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's alternative request to compel the provider to appear for an examination before trial. The record presented a triable issue concerning the medical necessity of the services, so the insurer's request for summary judgment dismissing the complaint remained denied. Its moving papers established service of a deposition notice, and the examination was material and necessary to its defense that the services lacked medical necessity under CPLR 3101 (a).
Appellate Term, Second Department
Jul 6, 2018
2018 NY Slip Op 51084(U)
Split result
The insurer failed to establish that its policy-cancellation notice was mailed by registered or certified mail as Virginia law required. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion insofar as it sought dismissal for lack of coverage. The insurer asserted cancellation for nonpayment before the accident but did not demonstrate mailing in accordance with office practices and Va. Code Ann. § 38.2-2208 (A) (1) (a). The provider's summary judgment motion remained denied because it failed to establish untimely denials or timely denials that were conclusory, vague or legally meritless. The matter was remitted for determination of the insurer's alternative request to dismiss amounts exceeding the workers' compensation fee schedule.
Trial court, Second Department
Jul 16, 2018
2018 NY Slip Op 28220
Split result
A provider owner seeking EUO lost earnings was protected from a second deposition, with the insurer allowed interrogatories. The owner brought a plenary action for the unpaid balance of earnings lost attending an EUO concerning the provider's no-fault claims. The District Court, Nassau County, rejected the contention that the insurer waived discovery by not addressing earnings at that EUO. Under 11 NYCRR 65-3.5 (e), reimbursement need not be agreed upon beforehand, and CPLR 3101 (a) entitled the insurer to relevant discovery in the new action. Nevertheless, another deposition would diminish the recovery the regulation protects. The court granted a protective order under CPLR 3103 (a), while permitting interrogatories under CPLR 3130.
Trial court, First Department
Jul 12, 2018
2018 NY Slip Op 51109(U)
Insurer prevailed
The insurer prevailed on rescission and lack of coverage despite failing to pay or deny the claims within 30 days. The Civil Court, Bronx County, dismissed the provider's action with prejudice after a bench trial. Applying a grouping-of-contacts analysis, it selected South Carolina law because the policy was negotiated and entered into there by a resident for a vehicle intended to be registered and garaged there. The court found deliberate, material misrepresentations concerning garaging and drivers, reliance by the insurer, and proof of a mailed rescission notice and refunded premiums. It treated rescission as a lack-of-coverage defense not precluded by the deadlines in Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3).
Trial court, Second Department
Jul 6, 2018
2018 NY Slip Op 51362(U)
The insurer's IME notice failed to plainly advise the assignor of reimbursement for lost earnings and reasonable transportation costs. The Civil Court, Kings County, denied both sides' summary judgment motions. Under 11 NYCRR 65-3.5 (e), the insurer had to inform the applicant of reimbursement when scheduling the IME. The notice merely recited the regulation rather than affirmatively stating the applicant's entitlement, and placed the language in smaller, very fine italicized print that was potentially unreadable. The unexplained presentation also created potential ambiguity about the language's origin. The provider failed to establish that the claims were not denied within 30 days or that timely denials were conclusory, vague or legally meritless under Insurance Law § 5106 (a).
